Judge sides with Telus in firing employee who called in sick to play in softball tournament

A former Telus service technician has struck out swinging in his pitch to keep his job for lying about being sick and taking the day off to play softball instead.

Court of Queen’s Bench Justice John McCarthy sided with Telus, which appealed an arbitrators’ ruling that Jarrod Underwood should not be terminated, but be suspended for 30 days for taking the day off to play in a slo-pitch tournament on July 3, 2011.

He had been told he could not do so as there were no other technicians available that day to complete scheduled work.

“In my view, on the evidence before him, the arbitrator could not have reasonably arrived at the conclusion that (Underwood) was sick,” McCarthy wrote in his recent decision.

“The only reasonable conclusion on the evidence is that (Underwood) lied about being sick and that his termination was justified. Remitting this matter to a different arbitrator to arrive at the only reasonable conclusion serves no useful purpose.”

The Telecommunications Workers Union had fought on behalf of the employee, who had worked with Telus for five years, throughout the process.

Court heard that Underwood asked in June 2011 to have the day off from his base in Fort McMurray to play ball, but was denied his request.

On the morning of July 3, 2011, Underwood sent a text to his manager at 7:47 a.m., saying he was sick. He texted again at 9:36, saying he was still unable to get through to dispatch. Dispatch called him at 10 a.m. and 1 p.m. but could not get through to the technician.

McCarthy said the manager was suspicious about the illness, given the man’s prior request to have that very day off, so he went to the tournament and observed Underwood pitching for his team at about 11:45 a.m. However, he did not confront him at that time.

Underwood, who had been scheduled for seven jobs that day, reported to work the following day on July 4 and was called into a meeting with his manager. When confronted, said McCarthy, the employee said he had woken up during the night with a severe case of diarrhea that persisted into the morning.

He admitted he went to the ballpark at about 10:45 p.m. and was still sick. He said he was able to manage his illness there, but not so at a customer’s home.

As a result of the incident, Telus terminated his employment and the union launched a grievance on his behalf.

It was noted that he had only one prior disciplinary action against him — a three-day suspension in April 2008 for consuming alcohol in a company vehicle while on duty.

According to the collective agreement, he could have applied for removal of the suspension from his file after two years, but had never requested it.

After the arbitrator ruled a 30-day suspension was more fitting than termination, Telus appealed to the court.

It claimed in its grounds for appeal that the arbitrator failed to weigh the evidence and make a proper finding as to whether Underwood was lying when he claimed to be too sick to report for work; that if the arbitrator did find that the man was sick, the finding was unreasonable; the arbitrator’s reasons were illogical; and the ruling by the arbitrator suggests that an employee can be too sick to attend work, yet sufficiently well to play baseball.

“I am of the view that the conclusion than an employee who is too sick to work could still pitch in a baseball game defies logic and common sense,” the judge said.

“Further, while I can appreciate that attending at a customers’ homes and businesses while suffering from diarrhea might carry with it some awkwardness, it seems to me unreasonable to conclude that the problem could be so severe as to merit missing work, yet be manageable from the pitcher’s mound.”

The judge also found that the arbitrator’s conclusion that the trust relationship between Telus and Underwood had not been irreparably damaged was coloured by his view of what dishonest conduct had occurred.

He said the arbitrator had proceeded on the basis that Underwood was in fact sick on the day in question, “a conclusion I have found to be unreasonable.”

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Judge sides with Telus in firing employee who called in sick to play in softball tournament

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